Wills and Estates
A. General Information. The Clerk of the Circuit Court of Fauquier County acts as Probate Judge. She probates the will, if there is one, and/or appoints executors or administrators of estates for deceased individuals who resided in this County. You may refer to A Guide to the Administration of Decedents' Estates in Virginia prepared by the Virginia Bar Association for additional information regarding estate procedures. You may refer to Wills in Virginia prepared by the Virginia State Bar for further information regarding the preparation of wills. Various Fiduciary forms are posted on the Virginia Courts web site.
B. Research. Copies of wills may be obtained in the Records Room. Estates can be researched for an initial cost of $5.00 payable to the Clerk, Circuit Court of Fauquier County, and mailed to 29 Ashby St., Warrenton, Va. 20186. Researches cannot be conducted by telephone. Copies of records are available at a cost of $.50 per page.
C. Wills. In order to probate a will, the Clerk must have the original. A copy is not acceptable. If the will is notarized and has a self-proving clause consistent with Virginia Code Section 64.2-452, no further evidence is needed to put the will to record. If is witnessed by at least two witnesses, but does not have a self-proving clause, the witnesses must submit a notarized statement regarding the execution of the will. If the will is handwritten by the decedent, two witnesses to the handwriting must execute a deposition form.
D. Qualification of Personal Representatives. Probate is done by appointment. Prior to the appointment, the person probating the will or applying for qualification as a personal representative must provide the following:
- the original will, if there is one
- contact information for the person(s) requesting appointment
- a certified copy of the death certificate
- an estimate of the value of the assets held solely in the decedent’s name, and
- the names and addresses of all legal heirs (See Virginia Code Section 64.2-200.)
You may use the attached form to provide this information. (Note to Attorneys and other Estate Advisors: Use forms set out in Item E below.)
E. Information for Attorneys and Estate Advisors. In lieu of the form mentioned above, please complete the forms set out below prior to requesting a probate appointment for your client:
- Probate Information Form (Form CC-1650)
- Probate Tax Return (Form CC-1651)
- List of Heirs (Forms CC-1611)
Please send copies of the drafted forms—these forms do not have to be signed by your client until the probate appointment—to the Clerk’s Office, together with a copy of the will and the death certificate.
F. Bond. The personal representative is required to post bond to protect the assets of the estate. The Clerk will advise you if you are required to have surety for the bond. Many wills waive surety on the bond of the executor. Surety on the bond is required when a non-resident is acting as personal representative. In many instances, where there is no will, surety on the bond is also required. The surety’s agent must appear at the time of the appointment to sign the bond. The phone numbers of local insurance agencies that provide this service are listed below:
Carr & Hyde - 540-347-2266
Hottle & Associates - 540 351-0862
Hanlon Insurance Agency - 540 347-4460
G. Costs. The probate costs vary depending upon the documents recorded and the value of the estate. The Clerk will estimate the costs prior to your appearance for an appointment.
H. Appointment. After posting bond as the personal representative, the personal representative will be provided with certificates of qualification or letters testamentary to transfer the assets in the estate. The personal representative will also be given instructions on the procedures to file an inventory and account of the estate with the Commissioner of Accounts.
I. Commissioner of Accounts: Please refer to the Fiduciary Instructions posted by the Commissioner of Accounts
J. Legal Notices. When legal notices require the address for the front door of the courthouse, please use the 40 Culpeper Street address. Legal notices may be published in any one of the following newspapers which meet the requirements of Section 8.01-324 of the Code of Virginia, as amended, for legal notices:
K. Top Rules for Fiduciaries
Your duties as a personal representative are set by law. Below are some important rules to assist you as you fulfill your duties; these aren’t the only rules but are the more important ones. If you are a conservator or trustee of a trust, or a guardian of a minor or incapacitated person, there are additional special rules on investing and spending the money you hold, and you should consult an experienced attorney for those.
1. KEEP MONEY SEPARATE. DO NOT deposit any estate money in your account or use estate money to pay your bills—you could be subject to criminal penalties if you do. Open an estate account at a bank for all estate funds.
2. GET CANCELED CHECKS FROM THE BANK. You must file an “Accounting” (a detailed statement of everything that you received and disbursed) with the Commissioner of Accounts. You have to prove that someone actually received the money you say you paid. THE ORGINIAL CANCELED CHECKS ARE REQUIRED, or copies of the imaged checks--front and back--if the original checks are not available.
3. CAREFULLY DETAIL ALL MONEY that comes in or goes out. For EACH item, you need to write down WHEN- WHO-WHAT/WHY-HOW MUCH. Example: If you get a $2.00 check from an insurance company, you need the WHEN (date you got it), WHO (name of insurance company), WHAT/WHY (payment on medical treatment or refund on premium) and HOW MUCH (the exact amount of the check). If you can, photocopy all checks before depositing them to the estate account.
4. KEEP RECORDS. Get a medium sized spiral notebook and use it as a diary. In it write everything you do in handling the estate you are in charge of--who you talk to, what was said, what was done. (Do not give the "diary" to the Commissioner of Accounts but keep for your file in the event additional information is required regarding any estate business.) For money, the checkbook register MUST be accurate. (Hint: Put money transactions in BOTH the notebook AND the checkbook register).
5. GET RECEIPTS. If you give someone personal property, you have to prove to the Commissioner that they accepted it and what it was worth. A receipt is the best way to do this.
6. DON’T PAY BILLS AND DEBTS TOO QUICKLY. If there’s not enough money in the estate, you can be personally responsible if you overpaid creditors. THIS INCLUDES THE FUNERAL BILL. There are laws that say who is entitled to what payment when, and if you think there may not be enough money to pay everything, consult an attorney.
7. ASK QUESTIONS. There are strict and detailed rules for handling someone else’s money; few people have experience doing it. Find a lawyer experienced in this area and use him/her as a resource. Ask questions—it is less expensive than making costly mistakes.
8. KEEP ON TIME & USE THE FORMS. Send notice to heirs and beneficiaries within 30 days, if required, and file affidavit with the Clerk’s Office listing recipients of said notice or stating why notice was not required. Your inventory is due at the Commissioner’s Office in 4 months; your statement of account is due in 16 months, or 6 months if you are guardian or conservator. You will personally owe any penalty assessed if it’s late. There are special forms and report formats the Court requires you to follow; use them AND Black Ink. Please be sure that you sign the certificates required on these forms.
9. TAKE CARE OF TAXES. You are responsible for making sure all taxes are paid on time. If you’re not sure what to do, get an accountant to help you.
10. Get A SPECIAL TAX ID NUMBER. (decedent’s estates and trusts). An estate is a different person from the person who passed away. IRS laws require a new Tax ID number. The good news is that the IRS makes this really easy to do.
11. DON’T DISTRIBUTE TOO QUICKLY (or too slowly). The heirs of the estate want their money yesterday. Virginia law doesn’t make you distribute for a year. If you give money to someone too early, and something happens that you need it back, you are legally responsible for it.
L. Notice regarding change of residency (§64.2-1409 & 64.2-1203)
Every personal representative who moves from Virginia and becomes a resident in another state shall inform the Clerk and the Commissioner of Accounts of this Court in writing of the new residence address within thirty (30) days of the date of the change in residency. Any person who fails to inform the Clerk and Commissioner of Accounts shall be subject to a civil penalty of $50.
Should there no longer be a personal representative residing in Virginia, the Code of Virginia requires that a secured bond be in effect. The personal representative should contact the Clerk to make sure the appropriate bond is executed.
M. Notice from Virginia Department of the Treasury
You are advised to check with the Virginia Department of the Treasury’s Division of Unclaimed Property to see if the decedent has a claim to property being held there.
They may be reached by calling toll free 1-800-468-1088.
Web site: www.trs.virginia.gov
N. Tax Notice
If you are a Personal Representative of an estate, you are charged with the responsibility of filing any income, inheritance, or estate tax return required by State or Federal Law and an accounting of your handling of the estate.
Date Last Modified: 08/05/2013